Consider the Reputation of the Employer’s Lawyer

Dan Schwartz pens an interesitng post at Connecticut Employment Law Blog. He notes that an employer controls the discipline process. The employer decides when or whether to terminate an employee. But, the employer has no control over what lawyer the employee hires. Dan suggests good questions regarding the employee’s lawyer: does the lawyer typically accept good cases, or does he accept weaker cases and then puff them up? Does s/he accept cases on pure contingency, or some blended rate, suggesting less than a winner-take-all strategy? Does the plaintiff attorney have a reputation for accepting a quick settlement? These are all valid questions that can affect whether the lawsuit is long and extended or relatively quick and painless.

Speaking as a plaintiff lawyer (mostly), I can say Dan’s questions are pertinent. Some plaintiff lawyers are more strident than others. Personalities do matter. Some do accept accept weaker cases. Some (very few) are paid by the hour. Some are paid on a pure contingency basis. And, some do a combination of the two forms of payment.

What questions should the employee ask about the employer’s lawyer? Does the defense lawyer drag out the discovery process, so as to bill every last drop of billable hours from the employer? Does the defense lawyer have a reputation for recognizing valid cases and offering reasonable settlement value prior to a summary judgment motion? Does the defense lawyer accept that some discrimination claims have merit? Surprisingly, some defense lawyers do not believe there are claims with merit. That makes a lawsuit extremely difficult. Every small request can lead to unnecessary friction.

The lawsuit process will last at least a year. Two years is more likely. The fundamental component of damages is lost pay. So, an employer or an employer’s lawyer who settles early will pay less. Lost pay early in a lawsuit is a manageable number. But, as trial comes closer and the months pass, lost pay increases. The bigger the amount of lost pay, the harder it is to settle a case. I have known several defense lawyers who will offer reasonable settlement amounts without ever filing a motion for summary judgment. That makes sense. Why devote time to a case that will probably lose for them? It makes sense to settle an employment case sooner than later.

Yet, far too many defense lawyers drag out a case, squeezing out every possible billable hour until the bitter end. Worse in my opinion are the few defense lawyers who believe all or most discrimination claims are weak or frivolous. Yes, as Dan says, in the law business, reputations do matter.

I always make a point to explain to employment clients that, even if I’ve worked with the employer’s *firm* before, the personality of the lawyer on the case can make a big difference. Often, I won’t know who that is until the case is under way.

I’ve had opposing counsel offer a fair settlement even before discovery, and I’ve had others offer “nuisance” value well on into the case (only to settle for close to the original demand eventually, months later). Sometimes, the tendency to bill, bill, bill will show up in such practices as removing to federal court (lots of paper churning and filing fees), only to point out there that there’s an arbitration agreement; they could have simply pointed that out with a phone call and a stipulated dismissal in state court, saving their client hundreds, if not thousands of dollars, and saving all of us several weeks of foot-dragging.

I was waiting for someone to do a smart post like this. The defense lawyer matters too. I’d like to think that most of us are reasonable people who can see the merit in some cases, but I fear that is probably not the case. There are those who believe in Rambo-tactics who fight to the end. But in the long run, attorneys who look out for their client, instead of their own fees, do themselves (and the profession) a favor.